Shifting of Company Registered Office

In accordance with Section 12 of the Companies Act, 2013, a Company shall have its registered office within a period of 30 days capable of receiving an acknowledging all communications and notices as may be addressed to it. It might happen that the Company intends to shift its registered office and accordingly, we shall discuss about the various provisions w.r.t. shifting of registered office of the Company.

The provisions relating to shifting of registered office can be divided into the following four categories:

• Within the local limits of same city, town or village (Eg: From Malviya Nagar to Dwarka within the state of Delhi)
• Outside the local limits of same city, town or village, but within the same state and same ROC (Eg: From Jaipur to Udaipur within the same state)
• Within the state but outside the jurisdiction of same ROC (Eg: From Pune to Mumbai within the same state of Maharashtra as there are two ROCs within the state of Maharashtra only i.e. ROC Mumbai and ROC Pune)
• Outside the state and outside the jurisdiction of same ROC (Eg: From Delhi to Mumbai)

Further, the summarized form of compliances and procedure for all the above four categories are explained below:

SUMMARISED PROCEDURE OF SHIFTING OF REGISTERED OFFICE WITHIN THE SAME STATE BUT OUTSIDE THE JURISDICTION OF SAME ROC

1. Convene Board Meeting in accordance with the provisions of the Companies Act, 2013 along with taking care of compliances of the Secretarial Standard – I and pass requisite board resolution.

2. Convene EOGM in accordance with the provisions of the Companies Act, 2013 along with taking care of compliances of the Secretarial Standard – 2 and requisite pass special resolution.

3. File e-Form MGT-14 within 30 days of passing of special resolution.

4. File the copy of the petition in Form GNL-2 to the ROC. It is also recommended to file the same in physical. The acknowledgement of such filing shall be an attachment to the petition being submitted to the RD.

5. The application (petition) shall be filed in Form No. INC 23 along with the fee and following documents:

• Board Resolution for shifting of registered office;
• Special Resolution of the members of the company approving the shifting of registered office;
• a declaration given by the Key Managerial Personnel or any two directors authorised by the Board, that the Company has not defaulted in payment of dues to its workmen;
• a declaration given by the Key Managerial Personnel or any two directors authorised by the Board, that the Company has either the consent of its creditors for the proposed shifting or has made necessary provision for the payment thereof;
• a declaration not to seek change in the jurisdiction of the Court where cases for prosecution are pending;
• acknowledged copy of intimation to the Chief Secretary of the state as to the proposed shifting and that the employees interest is not adversely affected consequent to proposed shifting.

6. Obtain order of RD. File such order in e-Form INC-28 within 30 days of passing of order by RD along with such order of RD as an attachment to the Form.

7. File Form INC-22 within 15 days of order of RD along with the following attachments:

• Order of RD
• Ownership Proof in case the property is registered in the name of Company
• Rent Agreement/Lease Agreement, etc in case the property is rented / leased.
• NOC from the owner
• Utility bill (eg: electricity/phone/water bill etc.) not older than two months

SUMMARISED PROCEDURE OF SHIFTING OF REGISTERED OFFICE OUTSIDE THE STATE AND OUTSIDE THE JURISDICTION OF SAME ROC

1. Follow Step 1 to Step 4 as given above. The same has not written in order to avoid repetition and for the sake of brevity.

2. Publish advertisements in Form INC 26 in the vernacular newspaper in the principal vernacular language in the district and in English language in an English newspaper with the wide circulation in the State in which the registered office of the company is situated

3. The copy of the petition shall be delivered to the Chief Secretary of the State Government or Union territory where the registered office is situated at the time of filing the application.

4. The application (petition) shall be filed in Form No. INC 23 along with the fee and following documents:

• a copy of Memorandum of Association, with proposed alterations;
• a copy of the minutes of the general meeting at which the resolution authorising such alteration was passed, giving details of the number of votes cast in favour or against the resolution;
• a copy of Board Resolution or Power of  Attorney or the executed vakalatnama,
• a list of creditors and debenture holders (not older than one month) setting forth the names and address of every creditor and debenture holder of the company along with the nature and respective amounts due to them in respect of debts, claims or liabilities.
• Acknowledgments of submitting the petitions to ROC and Chief Secretary;
• Copy of advertisements in Form INC-26
• Following affidavits signed by the Company Secretary of the company, if any, and not less than two directors of the company:

> Verifying list of creditors

> Verifying the non retrenchment of Employee

> Verifying the provisions of rules and regulations

• Following Affidavit signed by the director of the company:

> Verifying the petition

> Verifying publication of notice

> Verification that there is no enquiry, inspection, investigation and prosecution is pending against the Company

• Copy of the latest audited balance sheet and profit and loss account of the company along with auditors’ and directors’ report.
• Form MGT-14 along with paid challan.

Note that the complete set of signed petition shall also be submitted to the ROC and RD in physical form as well.

PRACTICAL ISSUES:

1. Earlier, there used to be hearing in the Regional Director’s office. But now, most of the cases are getting cleared without any hearing on the basis of facts and circumstances of the case which thereby are more favorable when consent of all the creditors is received by the Company.

2. The court fees stamp shall also be pasted on original copy of the petition. Such fee can be paid online only or else, court fee stamp can be purchased from any District Court, High Court, etc.

3. Earlier, the English newspaper publication was required to be given in the newspaper having wide circulation i.e. in Times of India for Delhi. But, w.e.f. 18.03.2019, the term “widest” has been substituted by the word “wide” meaning the newspaper publication can be given in any English newspaper having wide circulation.

4. The petition shall not be on letterhead of the Company except few annexure such as list of creditors, certified copy of special resolution, etc.

5. The Form INC-28 shall be filed before and then only Form INC – 22 can be filed.

6. In the order as may be issued by the RD, it may direct the Company to pay a miscellaneous amount to the ROC. However, there is no clarity on the legal background of such payment though; such payment has to be made on the MCA portal. Further, INC-28 shall only be filed once such payment has been made.

7. There are shall be five sets of petitions as following:

> One Original set for submission to RD

> Second for submission to the Chief Secretary

> Third for submission to the ROC

> Four for the consultant who shall appear on behalf of the client before the RD.

> Fifth for the client Company

{The author is a Company Secretary in Practice and can be reached at cskajalgoyal@gmail. com}